Federal agencies deploying surveillance drones in domestic airspace will be required to conduct annual privacy reviews, the Department of Justice announced last week. The new policy aims to require DOJ employees to assess the relative intrusiveness of the proposed use of drones and balance it against the particular investigative need. The goal is to ensure that federal law enforcement officials use the least intrusive means to accomplish their operational needs.
The policy requires DOJ agencies using drones to report on that use to the Deputy Attorney General on an annual basis, and requires agencies that have not previously used or have discontinued use of drones to notify the DOJ before starting or re-introducing a program. Currently, the FBI is the only law enforcement agency under the DOJ’s umbrella with an active drone surveillance program, though it is likely others will be launched as the technology is mainstreamed. Drones have already been used in kidnapping, drug and fugitive cases, and search-and-rescue operations — though their applications are likely to grow alongside their use.
The DOJ also emphasized that all drone use must be consistent with respect for civil rights and civil liberties. Specifically, the policy indicates that the Fourth Amendment right to be free from unreasonable searches and seizures must be respected, and precludes drone use for purposes of monitoring activities protected by the First Amendment. Even within the context of authorized and constitutional activities, the policy indicates that least intrusive methods of investigation should be prioritized. The DOJ also emphasized the importance of transparency, in terms of both the types and extent of operations being conducted.
These guidelines are an important first step toward mainstreaming use of drones for law enforcement purposes, and they do an excellent job of outlining the concerns posed by this technology, and the ways the federal government aims to address those in the early days of domestic drone operations. The policy does not assuage all potential privacy or transparency concerns , but it does emphasize those as important values in designing and implementing drone procedures in the law enforcement context. It also emphasizes the importance of maintaining the public trust, a value that need not be inconsistent with a properly structured, carefully deployed use of drone technology. While federal law enforcement use of drones is still in its infancy, it seems the DOJ is cognizant of concerns and committed to remaining vigilant about how, when and why government agencies are using drones.
